## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Milwau kee Mutual In suran ce Co. v . J.P. Larsen, Inc. , 2011 IL App (1st) 101316

Appellate Court Caption MI L WAUKEE MUTUAL I NSURANCE COMPANY, n /k /a M ilwaukee I nsuranc e Company
, Plaintiff-Appellant, v. J .P. L ARSEN, I NC., De f e n d a n t- A p p e lle e (Weather -Tite, I nc.; Boa rd of Direc tors of the Prairie District Homes Tower Residence s Condomini um Association; 18th and Prairie I I
, L L C; L eg acy De v el opment Group VI I I
, L L C; Wil liam E. Warman; Warren Ba rr I I I ; David Cuomo; Wil liam McNa bola; Gene ral I n v est ment Corporation; Dusan Kra ljevic; J adra nka Kra ljevic; J ennife r Kra ljevic; and Ha

nsen and H empel Company , Def endants).

District & N o. First District, F irst Division Docke t No. 1-10-1316

Filed Aug ust 15, 2011

Held (Note : Thi s syl lab us

con st it u t es no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial c ourt proper ly found that plaintiff insure r had a duty to defe nd defe ndant subcontrac tor under a compre hensive g ener al l i ability policy in a third-par

ty ac t i on alleg ing that the subcontrac tor installed leaky windows in a condominium building, since the underly ing pleadi n g s alleg ed “prope rty damag e” resulting from an “occ urre nce” wi t h in the policy ' s meaning

Dec ision Under Review Appea l from the Circuit Court of Cook Co unty , No. 09-CH-20554; the Hon. Danie l A. Riley , J udg e, pre siding.J udg ment Affir med.

Counsel on Appea l Novak L aw Offic es, of Chicag o (Neal R

. No v ak and Reid J

. Roz en, of counsel), f

or appe llant.

L aw Offic es of J ames A. Smit h, of Chicag o (James A. Smit h, of counsel), and Arnold M. Flank, L td., of Northbrook (Arnold M. Flank, of counsel), for a ppellee.

Panel J USTI CE L AMPKI N delivere d the judgme nt of the court, with opinion. Presiding J ustice Hall and J ustice Rochford concur red in the j u d gm ent and opinion.

OP INION

¶ 1 Plaintiff, Milwaukee Mutual I nsuranc e Company
, n/k/a Milwaukee I nsuranc e Company (Milwaukee I nsuranc e), appea ls the trial court ’s o rder deny ing its motion for summary judgme nt and g ranting summary judgme nt in favor of defe ndant, J .P. L arse n, I nc. (L arse n). Plaintiff contends the trial court err ed in finding the underly ing pleading s sufficie ntly established plaintiff had a duty to defe nd L arsen i n a t h i rd -par ty action. Ba sed on the following , we a ffirm.

¶ 2 FACTS ¶ 3 At all rele vant times, Milwaukee Insuranc e provided L arse n with comm er ci al general liability (CGL ) insurance and umbrella insurance

. I n Marc h 2003, Weather -T i t e, I nc. (Weather -Tite), hired L arse n as a subcontrac tor to apply seala nt to windows installed by Weather- Tite in a condominium building called Prairie District Homes (PDH). T he windows subsequently leake d and cause d water damag e. On J uly 29, 2008, the PDH Association filed

a third amende d verifie d complaint ag ainst, inter alia
, Weather- Tite for brea ch of express

a n d im p lie d war ranties. On April 23, 2009, Weather- Tite filed a third-par ty compl a in

t a g a in s t L arse n alleg ing that, in the event the PDH Associa t i o n was succe ssful with its brea ch of

war ranty claims, L arse n was liable for contribution as a joint tortfea s o r and also alleg ing L arse n was in brea ch of contra ct for failing to add Weather- Tite as an additional insured to its CGL policy

. ¶ 4 Weather- Tite and L arse n both tender ed defe nses to Milwaukee I nsuranc e. Weather -Tite tender ed its defe nse to the PDH Association’s third amende d verifie d complaint and L arse n tender ed its defe nse to Weather- Tite’s third-pa rty complaint. Milwaukee I nsuranc e denie d both defe nse tender s, finding there was no cover ag e under the CGL policy wher e the complaints alleg ed only construction defe cts and not “prope rty damag e” or an “occ urre nce”

-2-within the terms of the policy

.

¶ 5 On J une 25, 2009, Milwaukee Insura n ce fi l ed a co m p l aint for decla ratory judgme nt ag ainst Weather- Tite and L arse n t o d et er m ine the parties’ rig hts under the CGL policy

. Milwaukee I nsuranc e filed a motion for summ ary judgme nt, and Weather -Tite and L arse n both filed cross-motions for summary judgme nt. On Marc h 30, 2010, the trial court enter ed

an order g ranting Milwaukee I nsuranc e’s summary judgme nt motion as to Weather- Tite, but denying Milwaukee Insuranc e’s summary judgme nt motion as to L arse n

. T h e trial court g rante d L arse n’s cross-motion for summary judgme nt ag ainst Milwaukee Insu ra n ce

. This
appea l followed.

¶ 6 DECI SI ON ¶ 7 Summary judgme nt is appropr iate when “the pleading s, depositions, and admissions on file, toge ther with the aff

idavits, if any , show that there is no g enuine issue as to any materia l fac t and that the moving par ty is entitled to a judgme nt as a matter of law.” 735 I L CS 5/2- 1 005(c) (West 2002). When cross-motions for summary judgme nt have been filed
, t h e p ar t ies ag ree there are no g enuine issues of materia l fac t and only a question of law i s at issue ; t h er efor e, the parties invite the trial court to decide the issues based on the rec ord. Gree nwich Insurance Co. v . RPS Products, Inc

. , 379 I ll. App. 3d 78, 84, 824 N.E.2d 1102 (2008). We revie w an order g ranting summary judgme nt de novo

. Adames v. Sheahan
, 233 I ll. 2d 276, 296, 909 N.E.2d 742 (2009). ¶ 8 The construction of an insura nce policy

is a question of law. CMK D eve lopment Corp.

v. W est Bend Mutual Insurance Co.
, 395 I ll. App. 3d 830, 837, 917 N.E.2d 1155 (2009). I n construing the terms of an insurance policy
, it is this court’s g oal to g ive eff ect to the intent of the contra cting parties by rely ing on the lang uag e used in the signe d contra ct. Id. at 837- 38. We construe an insurance policy as a whole, using the plain and ordinary meaning of the
terms to g ive eff

ect to ever

y provision. Id

. at 838. Construction of the policy should include “due reg ard to the risk underta ken, the subject matter that is insured and the purposes of the entire contra ct.” Outboard Marine Corp. v. Libe r t y Mutual Insurance Co.
, 154 I ll. 2d 90, 108, 607 N.E.2d 1204 (1992). When the policy terms are unambig uous, we must apply them

as written; howeve r, if the terms are ambig uous, we must construe them strictly ag ainst the insurance company as the draf ters of the policy

. CMK Dev elopment Corp.
, 395 I ll. App. 3d at 838. ¶ 9 Milwaukee I nsuranc e contends the tr i al co urt err ed in finding it had a duty to defe nd L arse n under the parties’ CGL policy wher e the underly ing pleadings failed to alleg e damag es within the policy ’s cove rag e. ¶ 10 Courts have established a g ener al set of rules reg arding a CGL insurer’ s duty to defe nd, such that:
“ ‘A court must compar e the all eg ations in the underly ing complaint to the policy lang uag e ***.’ [C itations.] The alleg ations in the underly i n g complaint must be liberally construed in fa v o r of the insured. [C itation.] ‘ “An insurer may not justifiably ref

use to defe nd an action ag ainst its insured unless it is clea r from the fac e of the underlying complaints that the alleg ations fail to state fac ts which bring the

case within, or potentially within, the policy ’s cover ag e.” ’ (Emphasis omitted.)

-3-[C itation.] Where the insurer relies on a provision that it contends excludes cover ag e to reje ct a tender of defense, we review t h e applicability of t he provision to ensure it is ‘ “cle ar and fre e from doubt ” t h at t h e policy ’s exclusion preve nts cover ag e.’ [C itation.] ” National Fire Insurance of Hartford v. W

alsh Construction Co.
, 392 I ll. App. 3d 312, 315-16, 909 N.E.2d 285 ( 2009).
“I f rec overy i s p remised on sever al theories of liability
, some of which are excluded from

cover ag e, the insurer i s s t i l l obligated to defe nd as long as one theory might possibly fall within the scope of the policy cover ag e.” Pek in Insurance Co. v. Richard Marke r Associates, Inc. , 289 I ll. App. 3d 819, 821, 682 N.E.2d 362 (1997). ¶ 11 The CGL

policy issued by Milwaukee I nsuranc e to L arse n provided:
“We will pay those sums that the insured become s leg ally obligat ed t o pay as damag es beca

use of ‘bodily injury ’ or ‘prope rty damag e’ to which this insu ra n ce applies. We will have the rig ht and d u t y to defe nd the insured ag ainst any ‘suit’ seeking those damag es. Howeve r, we will have no duty to defe nd the insured ag ainst
any ‘suit’ seeking damag es fo r ‘bodi ly injury ’ or ‘prope rty damag e’ to which this insurance does not apply

. We may at our discretion, investigate any ‘occ urre nce’ and settle any claim or ‘suit’ that may

result.” The CGL policy limit ed cover ag e to “prope rty damag e” that wa s “c au s ed by an ‘occ urre nce’ that takes place in the cover ag e territory” and “occ urs during t h e p o l i cy period.” “Proper

ty damag e” was define d by the policy as: (1) “phy sical injury to tang ible
proper ty , including all resulting loss of use of that proper ty

. All such loss of use shall be deeme d to occur at the time of the phy sical injury that cause d it”; or (2) “[l] oss of use of tang ible proper

ty that is not phy sically injured. All such loss of use shall be de emed to

occur at the time of the ‘occ urre nce’ that cause d it.” “Oc curr ence” wa s define d by the policy as “a n ac cident, including continuous or repe ated exposure to substantially the
same g ener al har

mful conditions.” ¶ 12 Turning to the substance of the pleading s, the third amende d verifie d complaint filed by the PDH As s o ciation contained two counts ag ainst Weather- Tite, brea ch of the implied

war ranties of habitability and workmanship and brea ch of an express war ranty

. I ncorpor ated by ref ere nce into both counts, the PDH Assoc iation alleg ed: “The Condomini um has and continues to experience sever e water infiltration due
to the faulty construction fo r wh ich the Deve loper [18t h and Prairie I I
, L .L .C.] is responsible under its express war ranty , including but not limit ed t o the following : installing a window sy stem that does not adequately manag e the water which enter s the sy stem; fai l i n g t o install flashing at various locations as require d by the

arc hitectura l draw ings and/or improperly installing flashing at various lo ca t i ons; failing to proper ly install meta l ba se flashing and seala nt joints in va

rious locations resulting in deboned, open and split seala nt joints in various l o ca tions; allowing

cra cked and deboned mortar joints throug hout the masonry ; allowing cra cks within individual brick masonry and cast stone units at sever al locations ; allowing eff loresce nce or water infiltration into br ic k w o r k [; ] allowing loose and displaced cast stone units at various locations; failing to provi d e p ro p er end dams at various locations; n o t p roviding end dams at other locations[;] and failing to complete

war ranty punch list items.”

-4-Fur ther incorpora

ted by ref ere nce to both counts ag ainst Weather- Tite, the PDH Association alleg ed the develope r’s failure s to corr ect the defic iencies “have and continue to cause damag e to the Condomini um c ommon e lements, the units, and the individual unit owner ’s
persona l prop e r

ty

. A p art from the proper

ty damag e, the Association will have to make repa irs
to corr ect the desig n and/or con s t ru ct ion defe cts” with damag es estimated betwee n $4 milli on and $8 million. ¶ 13 Specifica lly
, in the brea ch of implied war ranties count, the PDH Association alleg ed that “Weather -Tite impliedly war rante d to the Unit Purchase rs that the Cond o m i n i u m was

rea sonably fit and suited for the purposes of habitation as a residenc e” and “individual Unit Owner s have sustained loss due to the faulty and defe ctive work” wher e Weather- Tite failed “to perf o rm i ts duties with proper workmanship, quality and skill [resulting] in the installation of a window sy stem that does not adequately manag e the water which enter s the
sy stem, resulting in signific ant and continuing water leaka g e into the common elements and residential Units of the Condomini um.” The PDH Association soug ht “dama g es in the
amount attributable to Weather[-]Tite’s brea ch.” Wit h respe ct to the breach of express

war ranty count, the PDH Association alleg ed the “B oard an d the individual Unit Owner s have sustained loss due to the faulty and d ef ec t ive work in the Condomini um” done by Weather- Tite and within the one-y ear requisite war ranty period “seve re exterior leaks wer e

occur ring in various windows of the Condomini um” such that damag es wer e soug ht in the “amount attributable to Weather[-]Tit e’s br eac h.” ¶ 14 The third-par

ty complaint filed by Weather- Tite ag ainst L arse n contained two counts. I n the first count, Weather- Tite alleg ed L arse n was liable for contribution as a joint tortfe asor in the event the PDH Association was succe ssful in its claims ag ainst Weather- Tite beca use L arse n committed one or more “neg lige nt acts and/or omissions ,” including: “[n] eg lige ntly and car elessly failed to follow the blueprints and plans provided for the contemplated construction”; “[c] are lessly and neglig ently failed to instruct its employ ees a s to the scope of work to be perf

ormed in the matter [ sic ] in which it was to be perf ormed” ; “[n] eg lige ntly and car elessly deviated from t h e p l an s and specific ations for the proposed caulking and sealing of window fra

mes, panel fra

mes, and louver frames”; “[w]as otherwise car eless and
neg lige nt in its perf

ormanc e of its work, supervision of its employ ees” ; an d “[f]ailed to inspect the are a of occur

renc e.” Weather- Tite further a ll e g e d th at “[a]s a direc t and proxi mate result of one or more of the *** neg lige nt acts or omissions
, *** [L arse n] proxi mately cause d and/or contributed to the allege d injuries claimed by ” the PDH Associ at i o n

. I n the s econd count, Weather- Tite alleg ed L arse n brea ched the parties’ subcontrac t by failing to name Weather- Tite as an additional insured on L arse n’s g ener al liability insurance policy
, there by causing Weather- Tite to incur costs, expenses, attorney fees
, and potential indemnity obligations. ¶ 15 I n order to deter mine whether Milwaukee Mutual has a duty to defe nd L arse n, we must

asce rtain whether the underlying pleading s alleg ed fac ts de monstrating “prope rty damag e” resulting from an “ occur

renc e” w ithin, or potentially within, the terms of the CGL policy

.

¶ 16 I . Property Damag e ¶ 17 We first consider whether the pleading s alleg ed “prope rty damag e” within the meaning of the CGL policy

. Milwaukee Mutual contends it had no duty to def en d wh er e t he

-5-underlying alleg ations failed to reque st “prope rty damag es,” only reque sting rec overy of the

costs to repa ir or repla ce the damag ed structure , which are not cover ed under the CGL policy

. ¶ 18 “Proper t y d am age ” wa s d ef i n ed in the CGL policy as “phy sical injury to tang ible
proper ty , includin g all resulting loss of use of that proper ty

. All such loss of use shall be deeme d to occur at the time of the phy sical injury that cause d it; or [l ]oss of use of tang ible
proper ty that is not phy sically injured. All such l oss of use shall be deeme d to occur at t he time of the ‘occ urre nce’ that cause d it.” The supreme court has further provided that “to the

aver ag e, ordinary person, tang ible proper ty suffe rs a ‘ phy sical’ injury when the pr operty

is altere d in appea

ranc e, shape, color or in other materia l dimension. Conversely
, to the aver ag e

m i n d, tang ible proper

ty does not experience ‘phy sical’ injury if that proper ty suffe rs intang ible damag e, such as diminuti on in value as a result from the f

ailure of a compone nt *** to function as promised.” Travelers Insurance Co. v. Eljer Manufacturing, Inc.
, 197 I ll. 2d 278, 301-02, 757 N.E.2d 481 ( 2001). ¶ 19 I n d et er m i n i n g wh et h er there was “prope rty damag e,” we keep in mind the policy considerations behind CGL insurance . Specifica lly , the supreme court ha s said:

“ ‘[C] omprehe nsive g ener al liability policies *** are intended to p rot ect the insured from liability for injury or damag e to the persons or proper ty of others; they

are not intended to pay the costs associate d with repa iring or repla cing the insured’s defe ctive work and products, which are purely economic losses. [C itations.] Finding

cov er age for the cost of replacing or repairing defe ctive work would transfor m the policy into something akin to a perf ormanc e bond.’ ” Id

. at 314 (quoting Qualls v. Country Mutual Insurance Co.
, 123 I ll. App. 3d 831, 833-3 4
, 4 6 2 N.E.2d 1288 (1984))

. Going further , the appe llate cour t has said: “[I f] insurance proce eds could be used for damag es from defe ctive workmanship, a contra ctor could be initially paid b y the customer for its work and then by the insurance company to repa ir or repla ce the work. [C itation.] Trea ting a CGL policy like a performa

nce bond would be unjus t to the C GL insurer, which, in co n t ra s t to the surety on a perf

ormanc e bond, cannot brin g s u i t ag ainst the contra ctor for the defe ctive construction.” Stoneridge Dev e lopm ent Co. v. Essex Insurance Co.
, 382 I ll. App. 3d 731, 752, 888 N.E.2d 633 (2008) (citing Monticello Insurance Co. v. WilFreds Construction, Inc. , 277 I ll. App. 3d 697, 709, 661 N.E.2d 451 (1996))

. ¶ 20 I n its third amende d verifie d complaint, the PDH Association alleg ed that, due to faulty construction, th e c o n d o mi n iu m c o mm o n e le me n ts , in d iv id ual units and unit owner s’ persona l
proper ty wer e damag ed. The complaint further stated that “apart from the property damage
, the Association will have to make repa irs to corr ect the desig n and/or construction defe cts” (empha sis added) in the amount of $4 milli on to $8 milli on. The alleg ation was pled ag ainst the develope r, but was also incorporated into the brea ch of war ranty counts ag ainst WeatherTite. Moreove r, in the brea ch of implied war ranty count, the PDH Ass o ci at i on alleg ed Weather- Tite’s faulty workmanship cause d ind i v i d u al unit owner s to sustain losses. The brea ch of war

ranty counts, and the alleg ations incorporated there in, wer e imputed ag ainst L arse n vis-à-v is the third-par ty complaint in which L arse n was alleg ed to be a joint tortfea sor based on neg lige nce. Although the damag es to the common ele ments, individual unit s and
persona l proper

ty wer e not expressly descr ibed, we must construe the pleading s liberally to

-6-allow for cover ag e, or, at least, the potential for cover ag e. W alsh Construction Co.
, 392 I ll. App. 3d at 315. ¶ 21 The dam age s al l ege d ar e n o t mere ly construction defe cts, which would constitute economic losses not cover ed under the CGL policy

. The costs descr ibed for the construction defe cts wer e betwee n $4 milli on and $8 milli on. The costs associate d with th e “p ro p er ty damag e” suffe red by the individual unit owner s was in addition to that sum, acc ording to the
comp l aint

. The damag es alleg ed are not intang ible or mere ly associate d with the repa ir or repla ceme nt of the fa

ulty window ca

ulking a nd seala nt. ¶ 22 Milwaukee Mutual spends a lot of time in its brief arguing that the allegat ions ag ainst L arse n are based in contra ct and, there fore
, Milwaukee Mutual could have no duty to defe nd. We disag ree

. The alleg ations in the third-par ty complai n t re peate dly state that L arse n neg lige ntly completed the job for which it was hired. Thus, althoug h identified as a cause of action for contribution, the all ega t i o n s o f the pleading control over its form and the alleg ations sounded in neg lige nce. See Pek in Insura n ce C o. v. Dial
, 355 I ll. App. 3d 516, 520, 823 N.E.2d 986 (2004) (“[t] he fac tual alleg ations of the complaint, rathe r than the leg al theory under which the action is broug ht, deter mine wheth er there is a duty to defe nd”); Lyons v. State Farm Fire & Ca s u a l t y C o

. , 349 I ll. App. 3d 404, 407-10, 811 N.E.2d 718 (2004). Moreove r, Milwaukee Mutual fails to acknow ledg e that alleg ations based in contra ct have resulted in d u t i es to defe nd as long as the damag e is not to the actua l proper ty the insured was working on but, rathe r, is to o ther proper ty cause d by the insured’s work product. See Richard Marke r Associates, Inc.
, 289 I ll. App. 3d at 820 (duty to defe nd found wher e the underlying alleg ations wer e for brea ch of an architec tural services agr eeme nt in which the insured failed to adequately desig n th e p l ac em en t and insulation of water and plumbing pipes a

nd brea ch of a

construction contr act f

or a f aulty HVAC sy stem). ¶ 23 We conclude the pleading s alleg ed “prope rty damag e” within, o r at l ea s t p o t en t i ally within, the definition of the CGLpolicy

.

¶ 24 I I . Occ urre nce ¶ 25 We next must consider whether the “prope rt y d am ag e” resulted from an “oc curr ence ” within the meaning of the CGL policy

. Milwa ukee Mutual contends the underly ing pleading s do not alleg e an “occ urre nce” wher e the “def ects alleg ed in the [t] hird-[p] arty [c] omplaint

are the natura l a

nd ordinary conseque nce of faulty workmanship, and the resulting damag e was not ca

used by an ‘a ccide nt.’ ” ¶ 26 As p re v i o u s l y s t ated, “occ urre nce” was define d in the CGL policy as “an a ccide nt, including continuous or re p ea ted exposure to substantially the same g ener al harmful conditi o n s

. ” “A cc ident” was not define d in the policy
, but courts have ag ree d that an “ac cident” is “ ‘an unfore seen occur renc e, usually of an untoward or disastrous char acte r or

an undesig ned sudden or unexpected event of an inflictive or unfortunate char acte r.’ ” State Farm Fire & Casualty C o

. v. W atters , 268 I ll. App. 3d 501, 506, 644 N.E.2d 492 (1994) (quoting Aetna Casualty & Surety Co. v. Freye r , 89 I ll. App. 3d 617, 619, 411 N.E.2d 1157 (1980))

. The “ ‘natura l and ordinary conseque nces of an act do not constitute an acc ident.’ ” W atters , 268 I ll. App. 3d at 506 (quoting Freye r , 89 I ll. App. 3d at 619). I n g ener al, “ ‘there is no “occ urre nce” when a subco n tr a c to r ’ s d e f e c ti v e w o rkmanship nece ssitates removing and
repa iring work.’ ” Viking Construction Managem ent, Inc. v. Liberty Mutual Insurance Co.
,

-7-358 I ll. App. 3d 34, 42, 831 N.E.2d 1 (2005) (quoting Robert J

. Fr anco, Insurance Coverage

for Faulty W

orkmanship Claims Under Commerc ial General Liabil ity Policies , 30 Tort & I nsuranc e L .J . 785, 789 (1995))

. ¶ 27 This court has repe atedly stated that damag e to something other than the proj ec t i t s el f does constitute an “occ urre nce” under a CGL policy

. CMK Dev elopment Corp.
, 395 I ll. App. 3d at 8 4 0 (c iting Stoneridge Dev elopment Co.
, 382 I ll. App. 3d at 752). “[D]efective workmanship could be cover ed if it damage d s o m ething other than the projec t itself.” Stoneridge Dev elopment Co.
, 382 I ll. App. 3d at 753. Ex amples of qualifying other proper ty include damag e to a homeowner ’s furniture
, clothing and antiques as a result of the insured’s faulty place ment and insulation of plumbing a nd water pipes (

Richard Marke r Associates, Inc.
, 289 I ll. App. 3d at 823); damag e to car s in a parking gar age completed with faulty

wo rkmanship by the insured, but not water damag e to the lobby and baseme n t , d am age d

concr ete, and cra cked floors in the adjoining building built by the same insured ( W il-Fred’s
, 277 I ll. App. 3d at 705); and damag e to car pets, upholstery and drape ries at a school wher e the insured incorpora

ted asbestos-c ontaining materia ls into the building structure ( United States Fidelity & Guaranty Co. v. W ilkin Insulation Co.
, 144 I ll. 2d 64, 75, 578 N.E.2d 926 (1991))

. ¶ 28 I n its third amende d verifie d complaint, the PDH Association alleg ed the installation of

a faulty wi ndow sy stem resulted “in signific ant and continuing water leaka g e into the

common elements and residential” units. (Emphasis added.) Moreove r, as previously discussed, the “prope rty damag e” t h at i s, at least possibly
, imputed to L arse n throug h his
neg lige nt workmanship included persona l proper ty and water damag e throug hout a building
not constructe d by L arse n. See Viking
, 358 I ll. App. 3d at 54 (“ne g lige nt workmanship that resulted in damag e to something other th an t h e structure worke d upon”); Richard Marke r Associates, Inc.
, 289 I l l

. App. 3d at 822 (there must be “dama g e to other materia ls not furnished by the insured”)

. There fore
, the underly ing pleading s alleg ed that L arse n’s
neg lige nt workmanship ca used an a ccide nt in the form of sig nificant and continuing water leaka g e. This is more than an alleg ation that the window seala nt and caulking wer e defe ctive. See Richard Marke r Associates, Inc. , 289 I ll. App. 3d at 823. We, the ref ore, conclude that an “oc curr ence ” wa s pled.

¶ 29 CONCL USI ON ¶ 30 Ba sed on our fin d i n g t h at t h e pleading s alleg ed fac ts that bring the cause within, or at least potentially within, the CGL policy ’s cover ag e, we conclude Milwaukee I nsuranc e has

a duty to defe nd L arse n in the third-par ty action. We aff

irm the judgme nt of the circ uit court.

¶ 31 Affir

med.

-8-